Article 29 Working Party guidelines on data portability, data protection officers, and lead supervisory authorities

Article 29 Working Party guidelines on data portability, data protection officers, and lead supervisory authorities

The General Data Protection Regulation (“GDPR”) will come into effect on 25 May 2018. It will have significant impact on how companies handle their personal data processing operations, so it is of utmost importance that companies already start implementing compliance processes internally. To this end, the Article 29 Data Protection Working Party (“WP 29”) has published three sets of guidelines that aim to clarify several key legal changes, giving its recommendations on how companies can ensure proper compliance with these new rules.

These guidelines were published on 16 December 2016, together with FAQs, and they address these three issues: (i) the right to data portability; (ii) Data Protection Officers (“DPO”); and (iii) the identification of the lead supervisory authority.

(i) The right to data portability

Article 20 of the GDPR strengthens the former access right and creates the right to data portability. This latter right enables data subjects to receive the personal data, which they have provided to a controller, in a structured, commonly-used, and machine-readable format, and to transmit them to another data controller. This right cannot be limited to the data that had already been directly communicated by the data subject, for example, on an online platform. Rather, it also covers data that are “provided” by the data subject by virtue of the use of a service or a device, e.g., through search history, traffic data, or location data. Technically, data controllers must enable data subjects to directly download the data concerned and also to directly transmit the data to another data controller “without hindrance”, regardless of the IT environment. In that respect, the WP 29 encourages industry stakeholders and trade associations to work together on establishing a common set of standards so that interoperability of the data format provided in the exercise of the data portability rights, can be ensured.

(ii) DPOs

Under Article 37 of the GDPR, several types of entities will be required to appoint a DPO. These types of entities are: (i) a public authority or body, (ii) entities whose core activities consist of processing operations that require regular and systematic large-scale monitoring of data subjects, e.g., business engaging in profiling or tracking online behavior, operators of telecommunication networks or services, providers of wellness services that process fitness and health data via wearable devices, and other connected devices (e.g. smart meters, smart cars, home automation, …); or (iii) entities whose core activities consist of large-scale processing of sensitive categories of data, e.g., the activities of hospitals or biomedical companies, institutions that process information relating to criminal convictions; the processing of travel data of individuals using a city’s public transport system, the processing of personal data for behavioral advertising by a search engine, or the processing of data (content, traffic, location) by telephone or internet service providers. Appointing a DPO can also be an obligation imposed by national Member States, such as what Germany has done, or it can be voluntary. The DPO must be involved properly and timely in all issues that relate to the protection of personal data, and it must be given the necessary resources to carry out its tasks. He must assist the data controller in monitoring compliance with the GDPR, although he will not be responsible for it. His advice must also be sought in relation to data protection impact assessment. In brief, companies must ensure that their DPO is informed and consulted from the very beginning on all data protection related projects or issues in order to facilitate compliance with the GDPR and to ensure a privacy by design approach.

(iii) Lead supervisory authority

If a data processing operation is not limited to a single Member State, several supervisory authorities (former DPAs) can be involved. The lead supervisory authority is the authority who has the primary responsibility for dealing with a cross-border data processing activity. This issue will thus arise only if there is a cross-border processing of personal data, i.e., if the processing takes place in the context of the activities of establishments in more than one Member State of a controller or processor in the Union where the controller or processor is established in more than one Member State; or if the processing occurs in the context of the activities of a single establishment of a controller or processor in the Union but which substantially affects or is likely to substantially affect data subjects in more than one Member State. According to the WP 29, this condition of “substantially affecting” must be handled on a case-by-case basis and must take into account the context of the processing, the type of data, the purpose of the processing and several factors such as whether the processing causes, or is likely to cause, damage, loss or distress to individuals, has, or is likely to have, an actual effect in terms of limited rights or denying an opportunity, affects or is likely to affect individuals’ s health, well-being, peace of mind or financial or economic status, leave individuals opened to discrimination , … Other supervisory authorities may be implicated by a personal data processing. The GDPR requires that they co-operate with the lead supervisory authority and that all decisions are taken to each authority’s satisfaction.

Stakeholders had until the end of January to comment on the published guidelines. Going forward, the WP 29 has announced that further guidelines on data protection impact assessments, on certification, and on the notion of high risk will be published. As from 2018, the WP 29 will become the European Data Protection Board (EDPB), which will be a larger and more prominent body. The EDPB will continue to provide guidance and updates on the GDPR and on all the questions and issues its implementation will trigger in the near future.

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